Fate of Trump's travel ban lies with federal appeals court

A decision on President Trump's travel ban that limits entry to the United States from seven different Muslim-majority countries could come as early as Wednesday.

Jeff Chiu/AP
Protestors hold signs while listening to court proceedings outside of the 9th U.S. Circuit Court of Appeals in San Francisco on Feb. 7, 2017. President Trump's travel ban faced its biggest legal test yet Tuesday as a panel of federal judges prepared to hear arguments from the administration and its opponents about two fundamentally divergent views of the executive branch and the court system.

A telephone hearing on one of President Trump’s recent executive orders drew more than 130,000 listeners to the YouTube Channel of the 9th Circuit Court of Appeals on Tuesday.

The hearing came after the US Department of Justice appealed a District Court judge’s decision to strike down Mr. Trump’s order to temporarily ban all immigration from seven Muslim-majority nations. As The Christian Science Monitor reported last week, that ruling, made by Judge James Robart in Seattle, had several elements:

Mr. Robart found that the states [suing the Trump administration, Washington and Minnesota,] had demonstrated injury to residents, as well as to public universities and their tax base, stemming from Trump’s order. And he barred the administration from enforcing “any action that prioritizes the refugee claims of certain religious minorities,” according to The New York Times. The judge also cast doubt on the Trump administration’s linking of the ban to the 9/11 attacks.

But Tuesday’s hearings in the 9th Circuit Court of Appeals, presided over by Judge Richard Clifton, Judge Michelle Friedland, and Judge William Canby, dwelled at length on security and religion.

Judge Clifton sought evidence that the immigration ban had been motivated by religion. Noting that the countries affected by the ban only make up 15 percent of the world’s Muslim population, he said he had "trouble understanding why we're supposed to infer religious animus when in fact the vast majority of Muslims would not be affected," according to the Associated Press.

Noah Purcell, Washington State’s solicitor general, argued that the ban had discriminatory motives, pointing to statements made by Trump calling for a ban on Muslim entry into the United States.

Judge Friedland questioned the government's connection between the seven nations to terrorism, according to the AP. August Flentje, arguing for the Justice Department, cited a number of Somalis in the United States with links to the Al Shabab terrorist group.

By arguing for the merits of the case, the Justice Department has broadened the scope of its argument. When the case reached District Judge Robart’s courtroom last week, the Trump administration’s lawyers had argued that a temporary restraining order placed on the ban should only apply to Minnesota and Washington, the two states that had appealed.

But Robart ruled that would "undermine the constitutional imperative of 'a uniform Rule of Nationalization' " that "should be enforced vigorously and uniformly," citing a 2015 Texas Appeals Court Judge’s ruling that struck down one of President Obama's executive orders on immigration.

A decision from the Appeals Court will likely come this week, and the case could continue to the Supreme Court. In the meantime, Trump has made his thoughts on the issue clear. "I watched last night in amazement," Politico quoted him as saying. "And I heard things that I couldn’t believe. I don’t ever want to call a court biased, so I won’t call it biased.... But courts seem to be so political, and it would be so great for our justice system if they would be able to read a statement and do what’s right."

Legal experts aren’t certain Trump will get what he wants. "I'm not sure if either side presented a compelling case," Stephen Vladeck, a professor at the University of Texas School of Law, told the Associated Press. "But I certainly thought the government's case came across as weaker."

This report contains material from Reuters and the Associated Press.

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